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Nibbling Away at the Truth

It's every creative's worst nightmare: Having your brainchild singled out for allegations of inaccuracy by a regulatory agency, or snagging a `misleading ad' moniker from a watchdog group. No wonder not many people on Madison Avenue want to discuss such things -- and even fewer want to do so on the record.

Being on the receiving end of criticism about an ad's truthfulness can be "a big pain, like a bully who keeps kicking at you, even after you've stopped fighting," says Andy Berlin, chairman of Berlin, Cameron & Partners in New York. "Advertising is the easiest profession in the world to hate. Unlike [with] religion or art, you can take a strong stand against it in public without offending anyone's sensibilities." Except, of course, the sensibilities of beleaguered copywriters and art directors, whose opinions in this arena are generally considered just as declasse as the campaigns themselves.

Consider, for instance, the Harlan Page Hubbard Lemon Awards. Named after the 19th- century hawker of Lydia Pinkham's Vegetable Compound, which Hubbard claimed cured everything from cancer to low sex drive, the tradition of citing "bad ads" started some 15 years ago and is coordinated by the Washington, D.C.-based Center for Science in the Public Interest (CSPI), a coalition of consumer groups. According to Michael Jacobson, executive director of the CSPI and co-author of Marketing Madness: A Survival Guide for a Consumer Society, the only good ad is a half-dead one. "Ads that tell you the price of a cantaloupe or the size of a computer screen or hard drive are useful. Or ones that encourage people to go to the library and read, or to turn off the TV and do things as a family. The Mormon Church also has some effective public service, pro-social announcements." If that sounds like Jacobson is essentially in favor of social and commercial causes he happens to agree with, well, no objection here.

Recent (dis)honors the CSPI dished out included Telecom USA's 10-10-321 spot featuring Tony Danza at his daughter's wedding. According to the Telecommunications Research and Action Center (TRAC), also in D.C., MCI, the parent company, actually offers plans cheaper than this so-called dial-around with per-minute costs for calls less than 10 minutes being among the highest long-distance rates available. The spot doesn't divulge this.

Also marked for recent CSPI criticism was a Quaker oatmeal TV campaign in which denizens attributed consumption of the gooey stuff to a decline in their cholesterol levels. What really helped push those levels down, says Bonnie Liebman, CSPI's director of nutrition, were lifestyle changes that included diet and exercise. Oatmeal was only a part of it -- and besides, "it wasn't any ordinary bowl" but rather the equivalent of three servings per day. "Why would a responsible company like Quaker exaggerate the benefits of eating such good food?" wonders Liebman.

Why indeed? Well, "The results of this challenge were consistent with 40 scientific studies," rebuts Alison Harmon, supervisor of media communications for Quaker. "Our intent was to personalize the fact that oatmeal is good for you in a simple yet apt way."

Much of the rest of the roster -- Saturn, U.S. Airways, Miller Lite, First Visa USA, Ginsana, Brown & Williamson and the Nuclear Energy Institute -- reads like a hit list that targets big business and/or politically incorrect interests. In the case of the Saturn coupe, being hammered for a third door that opens on the side of the road rather than the curb "is taking a point too far," scoffs Jerry Della Femina, chairman and creative director of Della Femina/Jeary & Partners in New York, who created campaigns ranging from Joe Isuzu to Dow Bathroom Scrubbing Bubbles. "It may be bad advertising but it was not false advertising. There's a fine line."

And therein lies the rub. It's one thing to have your lowfat cracker campaign nab a Schmio (rhymes with Clio), another un-accolade created by a consortium of academic and media watch organizations, but a different matter to be investigated by the Federal Trade Commission (FTC), or the National Advertising Division (NAD) of the Better Business Bureaus. Although it was founded in 1914 to stop unfair and deceptive practices in commerce, the FTC didn't develop teeth until almost a half a century later. That's when the agency issued strict guidelines for the advertising of over-the-counter-drugs, among other things. The NAD was created in 1971 as a response to consumer activists pushing for increased government regulation. Rather than have Uncle Sam do it, the industry then decided to police itself, with advertisers agreeing to cooperate with NAD investigations and abide by its findings.

For instance, the Hubbard-designated print campaign for the Nuclear Energy Institute was also investigated by the NAD because of its general claims regarding the environmental and safety benefits of nuclear energy. "Basically, it was targeted to policy makers and opinion leaders who read publications like The Washington Post, the New Republic and the Economist," explains Rick Morris, partner in the Smith & Harroff agency in Alexandria, Va. However, the challenger, the National Resources Defense Council "felt that the ads were aimed at consumers. We were happy to cooperate with the NAD and altered the language to make it more specific, from `environmentally clean' to `generates 20 percent of all electricity without emitting greenhouse gasses.' " Still, "if our target had been the average citizen," says Morris, "we would have mounted a totally different campaign, which would compare nuclear power to other energy sources."

Ads aimed at children also come under close scrutiny. Along with a set of comprehensive guidelines, the NAD has a Children's Advertising Review Unit (CARU), which is designed to monitor and modify inappropriate messages. And that's not all, folks. Government legislation includes the Lanham Act, which allows private parties such as consumers or competitors to bring legal action concerning false claims, while the Universal Commercial Code (UCC) regulates advertising at the state level. It's enough to make you want to take two aspirins and call the attorney in the morning before even putting fingers to keyboard, or pen to sketchpad.

Still, although media watchdogs and even John and Jane Doe do their fair share of grumbling, most complaints stem from rival companies. "Due to the onset of comparison ads in the '70s, much of what we see is, say, AT&T challenging the digital capability claims made by Sprint," observes Gunnar Waldman, NAD's communications and special project officer. "It's our job to check the facts and make sure that they're properly represented." In many instances, the company in question must present scientific information such as broad-based studies and other quantitative research that substantiates its assertions.

But even then, advertisers may not be out of the woods. "How do you prove that one thing tastes better [than another]?" Waldman goes on. "Or that it relieves pain? Everyone has a different idea and threshold of what those things represent." Vague concepts may include faster service or speed of electronic transmission, such as Internet connection. Yet more explicit generalizations such as "If we don't have your book, nobody does," for Barnesandnoble.com, and "[Visa is] the preferred lodging card" often don't hold up under NAD scrutiny. "The truth is not just what you mean, but what consumers see and hear," Waldman believes. "Advertisers are responsible for that as well."

And sometimes things get down and dirty. Look into the backgrounds of certain competitors, and you'll find "a long history of personal animosity and lawsuits," says an attorney who asked not to be named. "Sometimes I think the only way to get these companies to stop would be to eliminate comparative ads." In one FTC case, a manufacturer of exercise equipment was ordered to cease and desist from making particular claims in its infomercials, although no fines were levied. "But the truth of the matter was that we'd grown to be a certain size and were a threat to similar companies. They basically would keep bringing us before the FTC until we complied with the kind of advertising that takes place within the industry," says an equally anonymous representative for the advertiser.

Up In Smoke

Much advertising falls into the huge gray area defined as puffery, an exaggeration of a product's quality based on opinions rather than fact. "Basically it's so broad of a claim that it can neither be objectively proven nor taken as the truth," explains Nicholas Vianna, a lawyer with the NAD. And that's a lot of claims: the `best' buy; the `softer' fabric; the `classic' design. "Puffery consists of someone's perceptions, whereas false advertising is misleading," Vianna says. It's a matter of context."

Yet there are those who find fault in even calling a glass half-full. "With puffery, there's no disclosure of the downside: that a certain automobile finished last in a crash test or that if you drink beer you may become addicted to alcohol," states the CSPI's Jacobson. Advertising, he believes, should tell the whole truth and nothing but.

But who really wants to get real? "The whole idea here is to portray a product or service in the most flattering possible light," counters Andy Berlin. "From the time we're little we understand the concept of caveat emptor" -- that buying a Superman costume won't make you capable of leaping tall buildings with a single bound. "It's like your friend's bad haircut. If he's obviously enthralled with it and asks your opinion, you might hedge a bit."

Indeed, it's these very flights of fancy that make advertising fun. A recent TV spot for Propecia, an anti-baldness pill manufactured by Merck Pharmaceuticals, had the poor fellow with the thinning pate seeing domes in the most unlikely places. Although the commercial was hardly educational and failed to enumerate the results of clinical studies, it was entertaining. "We're responsible for crafting the strongest argument in the most appealing manner," comments Luke Sullivan, creative director at WestWayne in Atlanta. "And if that means engaging in poetic license to make a point, so be it, as long as we use accurate information." It's the suggestion of reality rather than the truth itself.

And never underestimate the intelligence of consumers. "Joe Isuzu lied all the time, and people loved the joke," adds Della Femina. That's because the lies were patently obvious and the joke was funny. But it's true enough that before investing in a product, many buyers will not only check out its competitors but get information about the company itself or from its Website.

In the final analysis, regardless of the reliability of product claims, advertising "can only help make the first sale," observes Elhanan Stone, a New York lawyer whose client, Rembrandt Age-Defying Toothpaste, was brought before the NAD when a competitor challenged the `age-defying' claim. "It's there to address a particular desire, and if it doesn't live up to its promise, people stop buying it."

But all these checks and balances have their place. "Everyone wins when we provide the most credible advertising possible," points out Sarah Melamed, senior VP at the Wolf Group in Cleveland. Her client, Dirt Devil, got sucked into an NAD investigation initiated by rival Eureka. "Actually, I found it to be an enlightening experience," she says. "It also makes us work harder to ensure that what consumers see is what they get. The competition is healthy."